Erin Yonchak1Erin Yonchak is a J.D. Candidate at the University of Chicago Law School, Class of 2024. She thanks the exceptional editors of the University of Chicago Law Review Online team. Erin dedicates this Essay to all victims of sexual violence and to all people whose abortion access is in jeopardy.
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TW: Rape, Sexual Assault
In June 2022, Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), leaving states with complete discretion in determining the legality of abortion. As of this Essay, twelve states have banned abortion in most cases. At least another dozen states have either severely restricted abortion or are expected to ban it in the near future. Some states’ abortion bans and restrictions have exceptions for victims pregnant by rape or incest.2See Table 1, which includes each state with a rape exception or defense in its abortion ban. More states are expected to follow suit in light of harrowing headlines about a ten-year-old rape victim forced to travel across state lines to seek an abortion, as the child’s state did not include such an exception.
Even so, these rape and incest exceptions have drawn ample criticism as they have proven inaccessible for victims, seemingly acting only as lip service to placate the majority of Americans who think abortion should be legal in most circumstances and the even greater majority who generally support rape victims’ access to abortion. One significant cause for criticism is the vagueness of the statutes specifying these rape exceptions. Some states’ statutory exceptions are entirely devoid of procedural or administrative details on how and when a practitioner may perform a rape-related abortion and what, if anything, the practitioner may need to show to prove that an abortion falls within the exception.3See Table 1.
Further, in some states, it is not even clear what constitutes “rape,” as the statutory exception fails to point to a related provision of the criminal code or otherwise lay out any definition for what constitutes rape. For example, in Mississippi, the abortion ban statute reads: “No abortion shall be performed or induced in the State of Mississippi, except in the case where necessary for the preservation of the mother’s life or where the pregnancy was caused by rape.” No further definition of “rape” is provided. This is particularly curious because the only charges for “rape” in Mississippi’s criminal statues, statutory rape and rape with the intent to ravish, apply only to minor or “chaste” victims, respectively. All other forcible sexual penetration, which would be considered rape by a layperson, is instead defined as sexual battery under Mississippi’s statutory code. Faced with such murkiness in the statutory language, abortion practitioners, fearing imprisonment if the state disagrees with their perception of rape, may feel that they are effectively unable to provide abortions, even for clear-cut cases of rape. And there are a host of other instances of sexual violence—many of which may involve less clear-cut cases of rape—that are at significant risk of not being covered under such rape exceptions.
Consider this scenario. A woman and a man consensually engage in intercourse. Before the start of intercourse, the woman ensures that the man uses a condom. During intercourse, the man covertly removes the condom to ejaculate in the woman. Or before intercourse, the man tampered with the condom, intentionally poking holes in the condom. The unknowing woman now faces a risk of unwanted pregnancy or sexually transmitted illness. This covert condom removal is an act of sexual violence known as stealthing that is frequently referred to as a “rape-adjacent” behavior. It is estimated that somewhere between 12% to 32% of women have been victims of stealthing.
One explanation cited as to why perpetrators engage in stealthing is that it is an act of reproductive coercion and abuse: forcing the victim to get pregnant as a means of control. And, in post-Dobbs America, these victims that become pregnant can no longer escape carrying the perpetrator’s fetus to term in a dozen or more states, unless stealthing falls under abortion bans’ rape exceptions. But the hurdle for stealthing to qualify under a rape exception is likely steep. Though stealthing has been recognized as a crime in Canada, New Zealand, Germany, Switzerland, Singapore, the United Kingdom, and parts of Australia, stealthing has only recently been acknowledged in the United States legal system and has yet to be considered a crime in any state.
Scholars in the past have argued that criminal misdemeanors, lesser criminal sexual charges, or civil actions may be the best legal recourse in the United States for stealthing. But such offenses would likely not be covered under states’ rape exceptions. The states that do define “rape” in their rape exception do so in a strikingly narrow manner, pointing unanimously to the criminal rape statute or the rape statute equivalent and excluding lower sexual assault or misdemeanor charges.4See Table 1. Thus, stealthing would likely need to be recognized as at least third-degree rape in order to qualify under the rape exceptions in most states as they are written now.
Capturing stealthing in existing rape doctrine would likely require either an update to criminal rape statutes or an update in judicial interpretation to reflect evolved norms around consent. Let’s take, for example, Utah’s rape statute, tied to their abortion ban exception, which states: “An actor commits rape if the actor has sexual intercourse with another individual without the individual’s consent.” Utah specifies that (1) consent to any sexual act does not necessarily constitute consent to any other sexual act, and (2) “[c]onsent may be initially given but may be withdrawn through words or conduct at any time prior to or during sexual activity.” Alexandra Brodsky, the legal scholar who coined the term stealthing, argues that “touch by a condom is fundamentally physically different from touch by the skin of a penis and thus each requires separate consent.” If the court were to accept Brodsky’s argument that sex without a condom is a distinct sexual act from sex with a condom, then stealthing may already qualify as rape under Utah’s rape statute. But courts are unlikely to adopt this theory of consent because “[t]he general understanding of the concepts of consent and rape in the United States lead to the belief that someone who consented to having [penetrative intercourse] was not raped.” Moreover, courts may express reluctance to adopt Brodsky’s theory of consent because of how challenging it may be to draw lines between distinct sexual acts in the course of intercourse that are so different as to require separate consent—Brodksy herself was unable to suggest such a line. But where possible, when facing challenges to whether abortions qualify under a state’s rape exception, courts in states like Utah should consider broadening their interpretation of “consent” to accept Brodsky’s argument—so that rape exceptions can maximally capture existing sexual violence like stealthing.
If states added conditional consent to their codified definition of consent, then stealthing would be more clearly included under consent-based rape statutes like Utah’s. Conditional consent is the theory that “‘true consent’ requires the conditions upon which consent was granted to be maintained throughout the sexual act.” So, if a person consented to sex on the condition of a condom being used, one party unilaterally removing the condom would automatically vitiate that consent. This conditional consent theory has been instrumental in the United Kingdom’s stealthing convictions—famously used in Assange v. Swedish Prosecution Authority (EWHC (Admin) 2011)—and could provide a clear basis for capturing stealthing in rape statutes that hinge on consent, like Utah’s, with simple tweaks to the definition of consent.
It is worth noting that Utah’s rape statute is more progressive than most—in many states “sexual penetration is a not crime unless there is both non-consent and some sort of force.” Several of the other states with rape exceptions still have such a force requirement written into their rape statutes, even for lesser degrees of rape. Any force requirement likely decreases the possibility of stealthing falling under the crime, as stealthing is inherently covert in nature so the perpetrator often need not use force or threats. Stealthing victims could potentially find recourse under the statutory exceptions to the force requirements that recognize rape where victims are “unaware” that the sexual conduct is occurring. Stealthing victims would need to convince the court that the stealthing incident was a distinct sexual act from the intercourse that they were actively aware of and participating in. This will be an uphill battle as courts have read “unaware” as largely applying to severely inebriated, physically unconscious, or sleeping victims. So, for stealthing to be unambiguously recognized in states where the rape law includes a force requirement, it may require a more fundamental change to these states’ criminal rape statutes—moving to a consent-based rape standard before then incorporating conditional consent into their definition of consent.
Some critics argue that criminalizing stealthing could incidentally criminalize common and innocent sexual behavior, like everyday condom breakage. Other critics argue that stealthing faces significant evidentiary hurdles that make it unlikely to be prosecuted effectively. While both these critiques are valid, no abortion ban exception requires a conviction in order to receive an abortion. But most abortion bans clearly require that a pregnant person experience criminal sexual conduct, as recognized by criminal rape or rape-equivalent statutes, in order to receive an abortion.
Perhaps a case could be made that a pregnant person need not experience recognized criminal sexual conduct to meet the rape exception in states that do not tie their rape exception to a criminal code. However, providers are already skittish about providing abortions in hostile states and are not well poised to push the envelope on what constitutes rape under these unclear rape exceptions—as the provider can face a lengthy imprisonment if the state disagrees with their characterization of rape. As such, recognizing stealthing as rape—via an expanded judicial interpretation of consent or codifying conditional consent provisions—is the clearest avenue to ensure that providers can be confident that stealthing falls under states’ abortion rape exceptions. And this, hopefully, would allow stealthing victims the potential option not to birth their perpetrators’ children.
But there remains good reason to be skeptical of this solution. Stealthing victims themselves report that the act falls short of “rape” in their view. And the harm of overcriminalization should not be treated dismissively. Moreover, there is no guarantee that criminalizing stealthing as rape would expand abortion access for stealthing victims in reality. Firstly, in states with abortion bans—including those with rape exceptions—abortion providers are dwindling so much so that there may not even be a single in-state provider available to assist rape victims. Secondly, some states’ rape exceptions require the victim to file a report with the police, or even a formal charge, prior to receiving the abortion5See Table 1.—which poses another substantial barrier for stealthing victims. Only about one-third of sexual assaults are reported to authorities. And victims are far less likely to come forward and report acquaintance rape—which includes most stealthing victims, as they often have some sort of relationship with the perpetrator. Instead, I suggest the following takeaways from this Essay: (1) Current rape law does not capture a swath of sexual violence, like stealthing—and rape exceptions, as written, do little to provide options for those victims. And (2) if providing abortion access to sexual violence survivors is a priority for legislators in abortion-restricted states, rape exceptions should be broadened to expansively define “rape” as any unwanted sexual conduct and divorce rape exceptions from the criminal system, which remains an inadequate mechanism for victims of sexual violence.
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Erin Yonchak is a J.D. Candidate at the University of Chicago Law School, Class of 2024. She thanks the exceptional editors of the University of Chicago Law Review Online team. Erin dedicates this Essay to all victims of sexual violence and to all people whose abortion access is in jeopardy.